Image from DBS Jeyaraj.com. This article was first published in Hulftsdorp Law Journal, Colombo Law Society (2014)

Introduction

The term sovereignty is frequently confronted with hostile claims. Human Right and Anti Corruption Movements are often challenged by various groups with different notions and ideologies on sovereignty. The purpose of this brief article is to examine some of the legal issues with reference to the concept of sovereignty in a global political context, especially in the light of the UN Charter.

Emergence of Concept of Sovereignty

It is interesting to note that the emergence of sovereignty took place at a time where France, England and Spain were looking for philosophical justification to have “supremacy over citizens without being bound by law and without recognizing any external superior”. French writer Jean Boding (1530-96) supplied the theory that “sovereignty is power supreme over its citizens and subjects, and not itself bound by the laws”. He too, however, thought that the sovereign rulers are subject to at least two limitations viz. “moral responsibility for his actions, and private property was inviolable without subject’s consent”. Several philosophers developed the theory and for example, Hobbs argued that Sovereignty is so absolute that consistent misrule on the part of the sovereign gave the subject no right to rebellion. Unqualified obedience was expected.

The great philosopher Bentham (1748-1832) had defined sovereignty as “any person or assemblage of persons to whose will a whole political community are (no matter on what account) supposed to be in a disposition to pay obedience; and that in preference to the will of any other person”.[1]

In application of this theory to national legal systems and political realities, philosophers such as Rousseau (1712-1778) and John Locke (1646-1723) challenged the basis of the concept of sovereignty; they saw sovereignty being vested in the people themselves as expressed in their general will. Sovereignty has thus turned to be a political tool in different historic settings, influencing political revolutions and constitutional making. It is in this context, many Constitutions, including ours, recognize the concept of sovereignty[2].

As pointed out above, the concept of sovereignty emerged initially as a domestic or internal facet for state control or command but later became a matter of external characteristic against interference. Grotius, regarded as father of international law, developed the theory in a historic context of the thirty year war, which devastated Europe between 1618-1648, resulting in emerging nation states. Grotius emphasized “the external aspects of sovereignty – sovereign states were independent of foreign control”[3].

External or state sovereignty deals with the relationship of a ruler with another ruler or a state. Ian Brownlie describes the principle corollaries of state’s sovereignty and equality as follows:

“(1) Jurisdiction, prima facie exclusive, over a territory and a permanent population living there; (2) duty of non intervention in the area of exclusive jurisdiction of other states; and (3) dependence of obligations arising from customary laws and treaties on the consent of the obligors.”[4]

Suffice it to refer to the third element above in order to emphasize the fact that, there is no violation of external sovereignty, if any action is taken in terms of “customary laws and international treaties”.

To make this part of the article complete, let me also cite Martti Koskenniemi, who acknowledged the difficulty in defining the meaning of sovereignty but attempted to characterize sovereignty as follows:

“in the relations between States signifies independence; independence in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other States, the functions of a State”.[5]

Critical Current International Debate

The application of Human Rights norms was initially resisted, and still being resisted by a few states including our own in a political context, rather than a conceptual basis. Doctrine of Human right accepts that a gross abuse of human rights is no longer a matter of domestic jurisdiction. It recognizes the universality of Human Rights as well as the duties of the international community to collectively advance and protect them. In the context of United Nations Conventions and Treaties, States are subject to various reviews, which have become part of the international human rights law. Thus, based on various state obligations arising out of those treaties and conventions, international law permits member states, expert panels, treaty bodies etc. to examine the status of human rights of a sovereign state. No doubt, this can be seen as interference into domestic affairs of a country, unless we closely examine the relevant provisions of the UN Charter. .

On the other hand, whether we like it or not, Globalization too has made the world smaller and open in every aspect. To make this point shorter, let me reproduce the often quoted words of one time UN Secretary General, Kofi Annan on the concept of sovereignty in today’s context:

“State of sovereignty is redefined by forces of globalization and international cooperation. The State is now widely understood to be a servant of the people and not vice versa. At the same time, individual sovereignty had been enhanced by renewed conscious of the right of every individual to control his or her own destiny. Those parallel did not lend themselves to simple conclusions. They did, however, “demand of us a willingness to think anew” how the United Nations responded to political, human rights and humanitarian crises affecting so much of the world….”[6]

It is therefore my contention that the doctrine of sovereignty has changed its original meaning due to the emerging global treads and has now gained a position that is consistent with the modern trends in human rights.

Article 2(7), Non Interference & Evolution of Thinking

It is Article 2(7) of the UN Charter that is often cited to thwart the development of pro-human rights global developements and to restrict the application of international human rights standards to domestic situations. Articlde2 (7) states thus:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters, which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

The literal meaning of this Article suggests that no country can interfere in another country in its domestic affairs. But, is that the meaning, when there are gross violations of human rights in a country? Are we to forget that the United Nations Organization was founded in response to the unprecedented gross human rights abuses by Hitler? Are we to overlook the fact that the international community came together to ensure that gross abuses of human rights would not be tolerated in the future? In fact several other provisions of the Charter echo the basic objectives of the UN, which includes “promotion” of human rights and fundamental freedoms[7].

In fact, in interpreting Article 2(7), the global community and experts have adverted, inter alia, to Articles 55 and 56. Excerpts of Article 55 and 56 are given below:

Article 55. With a view to creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

(a)..

(b)…

(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sec, language, or religion

Article 56. All Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55.

It took a considerable time to deal with the tension on the two “seemingly conflicting” provisions as aforesaid. In this route, many treaties had to address specifically how state parties cooperate with the UN and respect and protect human rights in specific country. In the mean time, UN organizations have developed practices to avoid the conflicts.

Article 1 of the Charter spells out the Purposes and Principles of the UN, which specifically recognizes that it is the duty of the UN to “achieve international cooperation ……. in promoting and encouraging respect for human rights and for fundamental freedoms for all”. UN has established the Commissioner of Human Rights and now a Human Rights Council. UN and its Treaty Bodies have also taken many strides in promoting human rights in line with the UN Charter. The UN Charter itself contains many provisions enabling the “lifting the veil of sovereignty” in appropriate cases involving gross human rights abuses.

Nevertheless, from time to time, few States took up the defence of sovereignty, in opposition to the application of international human rights instruments, affecting their respective countries, primarily based on the restrictive interpretation of Article 2(7) of the Charter. Let me go back to few instances to ascertain whether “defence of sovereignty (i.e. domestic jurisdiction defence or non-interference) is maintainable.

The “domestic jurisdiction” defence was effectively challenged during South African apartheid period. Let’s briefly examine the issues involving the position taken by the South African apartheid regime and UN response to it. In 1952, UN General Assembly appointed a Special Commission on Racial Situation in South Africa and the Union of South Africa raised the defence of “non interference” under Article 2(7). This Commission however concluded that “Article 2(7) prohibited only “dictatorial interference, a phase interpreted as implying a peremptory demand for positive conduct or abstention – a demand which if not complied with involved a threat of or resource to compulsion….. Article 2(7) referred only to direct intervention in the domestic economy, social structure or cultural arrangement of the State concerned but does not in any way preclude recommendations, or even inquiries conducted outside the territory of such State.”[8] This interpretation sealed off the counter argument that intervention is absolutely impermissible in case of gross violations of human rights.

Invocation of domestic jurisdiction defence has not been successful in gross abuses of human rights in Israel, Afghanistan, Chile and many other places. Steiner and Alstern argues that it has been difficult to pull together a wide range of governments to advance a strong defensive interpretation of Article 2(7) of the Charter that is consistent, because states arguing for such an interpretation in their own defence have nonetheless occasionally or frequently insisted that measures be taken against other violator states[9].

Position of China, which is a regular proponent of the defence of state sovereignty is worth considering at this stage, particularly it raises a common concerns among likeminded countries such as Russia, Sri Lanka, Belarus, Venezuela. Information Office of the State Council, Beijing made the position of China clear in 1991 in a while paper[10], which is hitherto considered the most authentic document on the subject by the Chinese Government. Few excerpts from the statement are reproduced below;

“Over a long period in the UN activities in the human rights field, China has firmly opposed to any country making use of human rights to sell its own values, ideology, political standards and mode of development, and to any country interfering in the internal affairs of other countries on the pretext of human rights, internal affairs of developing countries in particular and so hurting the sovereignty and dignity of many developing countries…… China has maintained that human rights are essentially matters within the domestic jurisdiction of the country. Respect for each country’s sovereignty and national law, which are applicable to all fields of international relations and of course applicable to the field of human rights as well. Article 2(7)…………………

The argument that principle of non interference in internal affairs does not apply to the issue of human rights is, in essence, a demand that sovereign states give up their state sovereignty in the field of human rights, a demand that is contrary to international law. Using human rights issue for the political purpose of imposing the ideology of one country on another is no longer a question of human rights, but manifestation of power politics in the form of interference in the internal affairs of other countries. Such abnormal practice in the international human rights activities must be eliminated………

China is in favor of strengthening international cooperation in the realm of human rights on the basis of mutual understanding and seeking a common ground while reserving differences…..

China has always held that to effect international protection of human rights, the international community should interfere with and stop acts that endanger world peace and security, such as gross human rights violations caused by colonialism, racism, foreingn aggression and occupation, as well as apartheid, racial discrimination, genocide, slave trade and serious violations of human rights by international terrorist organizations…..”

Similar sentiments have been echoed by few identified political leaders, who see the UN is imposing political ideology on their states. One can reasonably argue that these views are also plagued with political ideologies. What is significant however is that even those countries, like China, has recognized certain circumstance in which state sovereignty cannot be a defense in large scale abuses of human rights. Today, not many countries raise the issue of domestic sovereignty to defend a atrocious human rights record of a country. What is significant is that e most of those countries have a common interest in protecting their regimes through the doctrine of sovereignty rather than protecting and promoting human rights.

Like many other countries, Sri Lanka has also come under criticism for failure to respect human rights. Unfortunately, instead of taking genuine efforts to comply with international obligations, Sri Lanka has join a likeminded countries to “attack” UN human rights bodies, alleging that the UN is being manipulated by interested parties. These debates, in my view, will pose a threat to human rights discourse and to cover up domestic atrocities. The recent allegations against Sri Lanka of war crimes should not dilute the validity of universality and universal commitment to address human rights globally. Suffice it to say that these allegations and counter allegations are not yet verified and whether it will ever be established is yet another question. While acknowledging the need to examine and address the operations aspects of the UN itself, it is important, in the interest of humankind, to safeguard and promote human rights themselves within the available UN mechanism.

Let us read what President Rajapakse said during the last UN General Assembly session[11]:

In spite of the visible progress made, and consistent engagement with UN mechanisms, many countries are surprised at the disproportionate emphasis on Sri Lanka, and the unequal treatment through the multi-lateral framework. The basis for this relentless pursuit is also questioned. It is my conviction that the UN system should be astute to ensure the consistency of standards applied so that there is no room for suspicion of manipulation of the UN System by interested parties to fulfill their agendas.

By nature, human beings have the capacity to achieve the most challenging and noble goals in life, through strong commitment and dedication. I am confident that, by our own collective efforts these results would prove to be beneficial to all humanity..

The underpinning message in the above speech is that UN system is unfair and being manipulated and Sri Lanka should on its own, without involvement of international community, address its destiny. This is total under-estimation of the international human rights system and the scope of UN Charter. Further, under the Constitution of Sri Lanka, which binds all organs of the state, Sri Lanka “shall promote international peace, security and cooperation, and shall endeavor to foster respect for international law and treaty obligations in dealing among nations[12]. Our courts have repeatedly recognized that the Rule of Law is a fundamental principle which lies at the very foundation of the Constitution. Concept of Rule of law is well recognized in the international sphere and often linked to fact that the State itself is accountable in line with international human rights norms.

Report of the Secretary General of UN states:

“For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”[13]

In conclusion, the concept of sovereignty cannot be resorted by a government to cover up gross abuses of human rights in a State. In my argument, the international human rights norms protect people against gross abuses and grave violations committed by the state where they live in.